MISC

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

DAR ES SALAAM SUB REGISTRY

AT DAR ES SALAAM MISC. CIVIL APPLICATION NO. 24865 OF 2024 (Arising from the Ruling of the District Court of Kinondoni (Hon. E. Rwehumbiza, PRM) in Civil Revision No. 13 of 2023 and Misc. Civil Application No. 120 of 2023 between the parties) _________ EZEKIEL CHISINJILA………………..……….…….…….APPLICANT

VERSUS MARIAM M. MUHANDIKI……………..…..…….……RESPONDENT

RULING Date of last order: 10th December 2024 Date of Ruling: 30th January 2025 MTEMBWA, J.: Under section 14 (1) of the Law of Limitation Act, Cap 89 RE 2019 (hereinafter “LLA), the Applicant is seeking an order of extension of time within which to file an appeal against the ruling and orders of the District Court of Kinondoni in Civil Revision No. 13 of 2023 and Miscellaneous Civil Application No. 120 of 2023. The Application has been supported by an Affidavit from Ms. Faith Mwakikoti, the learned counsel for the Applicant. Having been served, 1 the Respondent resisted the Application by filing a Counter Affidavit. In addition, she filed a notice of preliminary objection to the effect that; 1. The Application is bad in law for the wrong citation of the enabling provision of the law, hence, this Hon. Court is improperly moved, as per the provision of Section 43 (f) of the Law of Limitation Act, Cap 89 [R.E 2019]; 2. The verification clause of the Applicant's purported Affidavit is bad in law for not disclosing the source(s) of information, as the matters therein are not of the Deponent's personal knowledge, contrary to Order XIX Rule ) of the Civil Procedure Code, Cap 33 [R.E 2019].

3. The Applicant's purported Application is bad in law for want of the Applicant's proper Affidavit, contrary to Order XLIII Rule 2 of the Civil Procedure Code, Cap 33 [R.E 2019]. When the matter came for orders on 10th December 2024, the Applicant was represented by Ms. Gloria Ulomy, the learned counsel, while Mr. Bernard Mbakileki, the learned counsel, symbolized the presence of the Respondent. By consent, both counsels agreed to argue the preliminary objection through written submissions. Having passed through the records, I am satisfied that both counsels adhered to the agreed schedule. 2 Staging the floor to argue on the first preliminary objection, Mr. Mbakileki argued that the matter had its origin in the decision of Kawe Primary Court (W.P. Kairanya, RM) dated 13th June 2023, followed by a Ruling of the District Court of Kinondoni (Hon. E. Rwehumbiza, PRM) dated 13th March 2024. That being the case, the applicable law for an order of extension of time is section 25(1) (b) of the Magistrate Court Act, Cap 11, R.E 2019 (hereinafter “MCA”), and not section 14(1) of LLA. He contended that the Applicant has cited, as enabling law, the general law while there is a specific law dealing with the matter. He cited sections 43 (f) and 46 of LLA. As to whether such an anomaly may be overlooked and or disregarded, Mr. Mbakileki referred this Court to the recent decision of the

Registered Trustees of Baraza Kuu la Jumuiya ya Waislamu Tanzania vs. Registered Trustees of the National Muslim Council of Tanzania (BAKWATA), Civil Application No. 480/08 of 2024 (unreported) where it was observed that where an application omits to cite any specific provision of the law or cites a wrong provision, but the jurisdiction to grant the order sought exists, the irregularity or omission can be ignored and the Court may order 3 that the correct law be inserted. However, he viewed such a decision as inapplicable due to the mandatory language of section 43 (f) of LLA. He added that the word “Shall” is imperative, and it implies a must. On the other hand, Mr. Mbakileki intensely argued that the overriding objective cannot apply in the circumstances of this case. He was fortified by the decision of Mondorosi Village Council & Others vs. Tanzania Breweries Ltd & Others, Civil Appeal No. 66 of 2017 (unreported), which underscored that the overriding objective principle cannot be applied blindly against the mandatory provisions of the procedural law that go to the very foundation of the case. Regarding the second preliminary objection, Mr. Mbakileki complained that the verification clause of the Applicant’s Affidavit is bad in law for not disclosing the source(s) of information contrary to Order XIX Rule 3(1) of the Civil Procedure Code, Cap 33, R.E 2019 (hereinafter “CPC”

) He cited the case of Salima Vuai Foum vs. Registrar of Cooperatives and Others [1995] TLR 75 where it was observed that where an affidavit is made on information 4 it should not be acted upon by any court unless the sources of information are specified. He also submitted that the Application had been supported by an affidavit of the Applicant’s counsel, who claims to have been given full mandate to do so by the Applicant; however, the source of information has not been disclosed in the verification clause. On this, reference was made to paragraph 2.0 of the Affidavit, which can not be reflected in the verification clause since the deponent admits that she was not on duty at the Primary Court of Kawe. Stretching further, Mr. Mbakileki implored this Court to find out that paragraphs 3.0, 4.0, 5.0 and 9.0 of the Affidavit are incurably defective for being lies since the deponent attempts to invite this Court to act on the non-existing materials. He referred this Court to “Annexure TAL-1 ” (Memorandum of Appeal). To fortify, he cited the case of LRM Investment Co. Ltd & 5 Others vs. Diamond Trust Bank (T) Ltd, Misc. Commercial Application 182 of 2020 (unreported), where it was observed that once a matter such as an appeal is struck out from the Court, nothing can be relied upon, be it a notice of appeal or otherwise filed by a party. He also cited the case 5 of Convergence

Wireless Networks (Mauritius) Limited & 3 Others vs. WIA Group Limited & 2 Others, Civil Application 263 of 2015 (unreported), to support the argument that an affidavit for use in court being a substitute for oral evidence, should only contain statements of facts and the circumstances to which the witness deposes either of his own knowledge. Such an affidavit should not include extraneous matters by way of objection, prayer, legal argument, or conclusion. Regarding the third preliminary objection, the Respondent complained that the Application is bad in law for want of proper Affidavit, contrary to Order XLIII Rule 2 of the CPC. Arguing in support thereof, Mr. Mbakileki referred this Court to the decision of Lalago Cotton Ginnery and Oil Mills Company Limited vs. the Loans and Advances Realization Trust (LART), Civil Application No. 80 of 2002 (unreported), where the Court observed that an advocate can swear and file an affidavit in proceedings in which he appears for his client, but on matters which are in his or her knowledge. He argued further that the mandate of an advocate to depone an affidavit on behalf of his/her client is not 6 automatic but is strictly subjected to the express consent or authority of his or her client. The learned counsel observed further that the Advocate for the Applicant acted without authority and swore an Affidavit in support of this Application

on behalf of her client without the express authority to do so. Based on that, he invited this Court to examine paragraphs 1.0 and 8.0 carefully to see whether they provide a full mandate to the Advocate to swear and file the Affidavit on behalf of the Applicant. He finally cited the case of Stanphod Pondi vs. Mkondo Pazi & 3 Others, Application No. 148 of 2022, the High Court of Tanzania (Land Division) at Dar es salaam (unreported). The Reply submissions were prepared and filed by Ms. Mwakikoti, the learned counsel for the Applicant. I have keenly gone through it and noted that she did not grasp the preliminary objections raised by the Respondent’s counsel. She has not chronologically replied to each of the arguments in support of every preliminary objection as raised. Moreover, she introduced and innovated irrelevant matters that were not even raised and argued by the counsel for the respondent; for example, matters related to illegalities 7 as grounds for an extension of time can not be traced from the Respondent’s submissions in chief. Sometimes, she traversed to argue as if she was arguing the main application. However, tiredly, I have grasped some few arguments that I will look into briefly. Regarding an objection that the supporting Affidavit contains hearsays, the learned counsel did not find purchase of the argument in support thereof. She contended that the impugned

Affidavit tallies with the requirement under Order XIX Rule 3(1) of the CPC and is consistent with the holding in Lalago Cotton Ginnery and Oil Mills Co. Ltd (supra). On the other hand, the learned counsel argued that the preliminary objections raised by the Respondent are not pure points of law and were raised in a bid to delay the final determination of the Application. To fortify, she cited the famous case of Mukisa Biscuits Manufacturing Co. Ltd vs. West End Distributors Ltd 11969] EA 696. In response to the argument that the verification clause is defective, the learned counsel placed reliance on the overriding objective principle under section 3A of the CPC and Article 107A(2)(e) of the Constitution of the United Republic of 8 Tanzania, 1977. She supported her arguments by citing the case of Yakobo Magoiga Gichere vs. Peninah Yusuph, Civil Appeal No. 55 of 2017 (unreported), where it was reaffirmed that procedural defects should not bar a party from accessing justice where substantive rights are at stake. In his rejoinder submissions, Mr. Mbakileki was not amused by how the Applicant’s counsel replied to the raised preliminary objections. He implored this Court to disregard the reply written submissions by the Applicant’s counsel. He then proceeded to rejoin on few aspects he could quickly grasp. However, having passed through the rejoinder submissions, I am satisfied

that it is more or less a replica of his submissions in chief. I will thus not reproduce and discuss the argument therein. It suffices here to note that he beseeched this Court to consider his submissions in chief and sustain the preliminary objections. Admittedly, the three preliminary objections raised are both worth tackling. For this ruling, I will first examine the third preliminary objection. On this, the Respondent’s counsel complained that the Application is bad in law for want of a proper Affidavit, 9 contrary to Order XLIII Rule 2 of the CPC. It was argued that the Advocate for the Applicant acted without authority and swore an Affidavit in support of the Application on behalf of her client without the express authority to do so. Indeed, Order XLIII Rule 2 of the CPC provides that every application to the Court shall, unless otherwise provided, be made by a chamber summons supported by an affidavit provided that the Court may, where it considers fit to do so, entertain an application made orally or, where all the parties to a suit consent to the order applied for being made, by a memorandum in writing signed by all the parties or their advocates, or in such other mode as may be appropriate having regard to all the circumstances under which the application is made. In this respect, an affidavit is a sworn statement a person makes before an authorized commissioner for

oath asserting that certain facts are true to the best of that person's knowledge. In the first place, Mr. Mbakileki vigorously argued that an advocate's mandate to depone an affidavit on behalf of his/her client is not automatic but strictly subjected to the express consent or authority of his/her client. In the second place, he observed that the 10 supporting affidavit is defective for want of proper authorization of the Applicant. On this aspect, I agree with him on the limitation of an advocate to swear an affidavit on behalf of his or her client unless he or she does that on non-contentious matters. It is advisable not to swear affidavits on behalf of the client on contentious matters. The reason is that an affidavit for use in Court, being a substitute for oral evidence, should only contain statements of facts and the circumstances to which the witness deposes either of his own knowledge. In such a situation, the deponent may be liable for cross- examination on certain facts and it will, therefore, be undesirable for an advocate to be cross-examined on the matter in which he or she has conduct. It is for this reason that Rule 61 of Advocates (Professional Conduct and Etiquette) Regulations provides that; Subject to the court rules and practice, an advocate shall not be allowed to give evidence in a matter in which the advocate is involved as an advocate except in

circumstances where it is permissible. The rationale behind such restriction was underscored in the case of Kellen Rose Rwakatare Kuntu (As Legal Representative 11 of the late Rev. Dr. Getrude Lwakatare) & 3 Others vs Zithay Kabuga (Misc. Land Application No. 89 of 2023; Misc. Land Application No. 89 of 2023) [2023] TZHCLandD 16974 (14 September 2023), where it was observed that Therefore, the rationale behind this restriction is evident that an advocate who has sworn an affidavit cannot be cross- examined in a matter that he has conduct. For the reasons stated hereinabove, the court finds the objection raised by the counsel for the respondent has merit and it is hereby sustained. In Kenya, the same restriction is also imposed on advocates. In Kwacha Communications Limited & another vs. Pindoria Holdings Limited & another [2022] eKLR, the Court noted; As regards the appellant’s objection regarding the affidavit supporting the application, it is clear that Mr. Munyithya has deponed only to matters within his personal knowledge as counsel acting in this matter both in the High Court and in this Court. Ordinarily counsel is obliged to refrain from swearing affidavits on contentious issues, particularly where he may have to be subjected to cross examination (See Pattni v. Ali & 2 Others, CA. No. 354 of 2004 (UR 183/04). Rule 9 of the Advocates (Practice) Rules however permits an

advocate to swear an affidavit on formal or non-contentious matters. (Emphasis mine) 12 In this case, the objection is not predicated on the mandate for an advocate to swear an Affidavit for use in Court but instead on the authority to do so. According to Mr. Mbakileki, the learned counsel (deponent) had no proper authority to depone the supporting affidavit on behalf of his client. Unfortunately, the learned counsel for the Applicant did not reply to this incriminating objection. It is undisputedly clear that an advocate has the authority to swear an affidavit on behalf of his or her client on the matters of which he or she has the knowledge, especially on non-contentious matters as aforesaid. For instance, he or she can swear an affidavit on the facts relating to previous matters or issues in which she or he had the full conduct. In any case, she or he should avoid telling hearsay ( see: Lalago Cotton Ginnery and Oil Mills Co. Ltd (supra). The question for consideration would be whether, looking at the supporting affidavit, the Applicant authorized the learned counsel (deponent) to swear such an affidavit. Paragraph 1.0 of the affidavit provides; That, I am the advocate for the Applicant herein; and thus I have full facts pertaining to this Application. I am further, 13 given the nature of this Application, in full authority to depose this Affidavit for the Applicant. The

above-quoted paragraph needs no interpolations of any kind. The learned counsel deponed that she has all the facts pertaining to this Application. In addition, given the nature of the matter, she has the authority to depone the Affidavit on behalf of the Applicant. The question would be whether the phrase “in full authority to depose this Affidavit for the Applicant” signifies the Applicant's authority. Borrowing a leaf from Accounts, according to the Lawinsider website (https://www.lawinsider.com), the phrase “in full authority” is defined as follows; …..means having the sole responsibility for making decisions or acting on behalf of someone. It can also mean having the power to exercise the responsibilities and obligations of a role. …..means the authority to act on behalf of the Customer in all matters relating to the Customer’s account. A person with this authority is able to review, discuss and change any information contained in the Customer’s account, including personal information such as email address and bill delivery method. This includes online access to My Account where relevant. In my conviction, the phrase “in full authority to depose this Affidavit for the Applicant” signifies the Applicant's authority. She was, therefore, authorized to swear an affidavit on behalf of the Applicant. 14 Since she also had instructions to conduct the matter in the High Court, I

see no reason to fault the authority given to her unless other unknown factors are brought to the attention of the Court. In fine, the third preliminary objection is overruled. Regarding the second preliminary objection, Mr. Mbakileki complained that the verification clause is defective for want of disclosure of the source of information. Order XIX rule 3 (1) of the CPC provides that Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove, except on interlocutory applications on which statements of his belief may be admitted. Expanding further on the cited law, Mulla, in his celebrated Book titled “The Code of Civil Procedure”, 17th editions, at pages 854 and 855 has this to say; The rule means that save in exceptional cases, viz, interlocutory applications, an affidavit must contain the evidence of the deponent as to such facts only, of which he is in a position to speak from his own knowledge. Where the evidence is adduced by affidavits, such affidavits may be properly verified either from knowledge or from sources. But the basis of such knowledge or source of information must be clearly stated. The provision of O 19, r 3 of the Code of Civil Procedure must be strictly observed: every affidavit should clearly express how much a statement is based on the 15 deponent’s knowledge and how much of the statement was his belief. Gathering

from Mulla, the grounds of belief must be stated with sufficient particularity to enable the Court to judge whether acting on the deponent belief would be safe. The source of information should be clearly disclosed in the affidavit. If the averments in the Affidavit are not based on personal knowledge, the source of information must be stated. In Jacqueline Ntuyabaliwe Mengi and 2 Others vs. Abdiel Reginald Mengi and Five Others, Civil Application No. 332/01 of 2021, Court of Appeal of Tanzania at Dar es Salaam, the Court took a stance enunciated in the case of Lisa E. Peter v. Al — Hushoom Investment, Civil Application No. 147 of 2016 (unreported). While referring to the Indian case of A.K.K.Nambiar vs. Union of India (1970) 35 CR. 121, the Court observed that; The importance of verification is to test the genuineness and authenticity of the allegations and also to make the deponent responsible for allegations. In esssenæ verification is required to enable the court to find out as to whether it will be safe to act on such affidavit evidence. In the absence of proper verification clause, affidavit cannot be admitted as evidence 16 Mr. Mbakileki referred this Court to paragraph 2.0 of the Affidavit, which can not be reflected in the verification clause since the deponent admits that she had no instructions to represent the Applicant in the subordinate Courts. Undisputedly, the

law mandates the deponent to disclose the source of information in the verification clause. Indeed, looking at it, the learned counsel verified to have gathered the facts from her own knowledge. That did not amuse the Respondent’s counsel. Since there is no dispute that the deponent was not instructed to take up the matters in the subordinate Courts, there was a need to disclose the source of information regarding what transpired in the Primary Court of Kawe and the District Court of Kinondoni. Such disclosure is lacking in the verification clause. However, even if paragraph 2.0 is expunged for such reason, the question would be whether the remaining paragraphs will not support the Application. In Phantom Modern Transport (1985) Limited vs. D.T. Dobie (Tanzania) Limited, Civil Reference No. 19 of 2001 (unreported), the Court accepted the position in the Matove case and observed further that an affidavit that violates those conditions should 17 be struck out. However, this decision also is an authority to the position that; Where the defect is inconsequential, those paragraphs can be expunged or overlooked leaving the substantial parts of it intact so that the court can proceed to act on it. If however substantial part of an affidavit is defective it can not be amended in the sense of striking off the offensive parts and substituting thereof correct averments in the

same affidavit….. In Rustamali Shivji Karim Merani vs. Kamal Bhushan Joshi, Court of Appeal of Tanzania at Dar es Salaam, Civil Application No. 80 of 2009 (unreported), the Court noted; In Tanzania after expunging the offensive paragraphs of an affidavit, courts are enjoined to examine whether the remainder of the Affidavit can support the application. If the remaining parts are insufficient to support it, the Application must go but a party may file a fresh affidavit. … …….as the affidavit is replete with offending paragraphs, and as the repugnancies are substantial, we have to agree with Ms Mnguto, that the Affidavit is incurably defective. Since the affidavit is incurably defective, it can not support an application. In the circumstances guided by the above position, even if paragraph 2.0 of the Affidavit is expunged, the substantial part of the 18 Affidavit will remain intact to support the Application. That said, the second preliminary objection is sustained to that extent. Regarding the first preliminary objection, Mr. Mbakileki complained that the Application is bad in law for the wrong citation of the enabling provision of the law. He considered the Court to have not been properly moved. He contended that the applicable law for an order of extension of time is section 25(1) (b) of the MCA and not section 14(1) of LLA. He faulted the Applicant for citing, as enabling

law, the general law while there is a specific law dealing with the matter. On my part, I have failed, with respect, to agree with Mr. Mbakileki that failure to cite the enabling provision of the law or moving the Court improperly renders the Application incompetent. It might be a position of the law that existed earlier but that has been overtaken by the reception into our laws the overriding principle vide Act No. 8 of 2018. Since the orders sought in the chamber summons are unambiguous, the objection as to the failure to cite the proper provision of the law can not arise. What the Court is mindful of is whether it is ceased with requisite jurisdiction to entertain the matter 19 before it. This position was also underscored in the case of Bin Kleb Transport Company Ltd vs. Registrar of Titles and Others, Civil Application No. 552/17 of 2020 (unreported), where the Court noted as follows; In the first place, we think the citation of rule 4(2) of the AJA, must have resulted from a slip of the pen. The applicant must have meant section 4 (2) of the AJA rather than rule 4 (2). Be that as it may, the citation of section 4 (2) of the AJA was improper because the Court is not hearing any appeal which is what section 4 (2) of the AJA is all about. The appropriate provision for an application such as this one should have been section 4 (3) of the AJA. That means that the applicant has

not properly moved the Court to exercise its revisional power. However, mindful of the proviso to rule 48 (1) of the Rules and considering that the Court has the requisite jurisdiction to entertain applications for revision such as the instant one, we shall disregard the error and proceed to determine the application on merit. (emphasis mine) Looking at the Chamber Summons, I am satisfied that this Court has jurisdiction to entertain this Application even if the Applicant has improperly moved it. That alone suffices to disregard the first preliminary objection. 20 That said and done, the preliminary objections raised by the Respondent’s counsel are resolved to such extent. To that end, the Application is maintained. Considering the circumstances, there will be no order regarding costs. I order accordingly. Right of appeal explained. DATED at DAR ES SALAAM this 30th January 2025. H.S. MTEMBWA

JUDGE 21